PARTNERSHIP
The record in the commercial registry
G.R. No. L-6252 January 28, 1911
GEORGE O. DIETRICH, plaintiff-appellee,
vs.
O.K. FREEMAN, JAMES L. PIERCE, and BURTON
WHITCOMB, defendants.
BURTON WHITCOMB, appellant.
O'Brien and De Witt for appellant.
W. L. Wright for appellee.
TRENT, J.:
This action was brought against O.K. Freeman, James
L. Pierce, and Burton Whitcomb, as owners and
operators of the Manila Steam Laundry, to recover the
sum of P952 alleged to be the balance due the plaintiff
for services performed during the period from January 9,
1907, to December 31, 1908. Judgment was rendered in
favor of the plaintiff and against Freeman and Whitcomb,
jointly and severally, for the sum of P752, with interest at
the rate of 6 per cent per annum from the 27th day of
August, 1909, and the costs of the cause. The complaint
as to Pierce was dismissed, Whitcomb alone appealing.
When the plaintiff was first employed on the 9th of
January, 1907, this steam laundry was owned and
operated by Freeman and Pierce. Pierce, on the 18th of
January, 1907, sold all of his right, title, and interest in
the said laundry to Whitcomb, who, together with
Freeman, then became the owners of this laundry and
continued to operate the same as long as the plaintiff
was employed.
The trial court found that the balance due the plaintiff for
services performed amounted to the sum of P752. This
finding is fully supported by the evidence of record.
Counsel for the appellant Whitcomb now insists
1. That the court erred in giving, jointly and severally, a
judgment against Freeman and Whitcomb for any sum
whatever; and
2. That the court erred in holding the appellant Whitcomb
liable.
It appears from the record that Whitcomb never knew
the plaintiff, never had anything to do with personally,
and that the plaintiff's contract was with Freeman, the
managing partner of the laundry. It further appears from
the record that Pierce, after he sold his interest in this
laundry to Whitcomb, continued to look after Whitcomb's
interest by authority of the latter.
Articles 17 and 119 of the Code of Commerce provide:
Art. 17.
shall be optional for private merchants and
compulsory for associations established in
accordance with this code or with special laws,
and for vessels.
Art. 119 Every commercial association before
beginning business shall be obliged to record its
establishment, agreements, and conditions in a
public instrument, which shall be presented for
record in the commercial registry, in accordance
with the provisions of article 17.
Additional instrument which modify or alter in
any manner whatsoever the original contracts of
the association are subject to the same
formalities, in accordance with the provisions of
article 25.
Partners can not make private agreements, but
all must appear in the articles of copartnership.
In the organization of this partnership by Freeman and
Whitcomb the above provisions of law were not complied
with; that is, no formal partnership was ever entered into
by them, notwithstanding the fact that they were
engaged in the operation of this laundry.
The purpose for which this partnership was entered into
by Freeman and Whitcomb show clearly that such
partnership was not a commercial one; hence the
provisions of the Civil Code and not the Code of
Commerce must govern in determining the liability of the
partners. (Manresa, vol. 1, p. 184; Aramburo, Civil
Capacity, 407, 432; Prautch vs. Hernandez, 1 Phil. Rep.,
705; and Co Pitco vs. Yulo, 8 Phil. Rep., 544.)
In support of the second assignment of error our
attention has been called to the cases of Hung-Man-Yoc
vs. Kieng-Chiong-Seng (6 Phil. Rep.,
498); AngQuianCieg vs. Te Chico (12 Phil. Rep.,
533); Bourns vs. Carman (7 Phil. Rep., 117). In the first
of these cases the partnership was a mercantile one, as
it was engaged in the importation of goods for sale at a
profit. This was also true in the second case. In neither
of these cases were the provisions of articles 17 and 119
of the Code of Commerce complied with. Those
partnerships, although commercial, were not organized
in accordance with the provisions of the Code of
Commerce as expressed in those articles. In
determining the liability of the partners in these cases
the court, after making the finding of facts, was governed
by the provisions of article 120 of the Commercial Code.
In the last case cited the partnership was one
of cuentasenparticipacion. "A partnership," quoting from
the syllabus in this case, "constituted in such a manner
that its existence was only known to those who had an
interest in the same, there being no mutual agreement
between the partners, and without a corporate name
indicating to the public in some way that there were
other people besides the one who ostensibly managed
and conducted the business, is exactly the accidental
partnership of cuentasenparticipacion defined in article
239 of the Code of Commerce."

In a partnership of cuentasenparticipacion, under the

provisions of article 242 of the Code of Commerce,
those who contract with the person in whose name the
business of such a partnership was conducted shall
have only the right of action against such person and not
against other persons interested. So this case is easily
distinguished from the case at bar, in that the one did not
have the corporate name while the other was known as
the Manila Steam Laundry.

The plaintiff was employed by and performed services

for the Manila Steam Laundry and was not employed by
nor did he perform services for Freeman alone. The
public did not deal with Freeman and Whitcomb
personally, but with the Manila Steam Laundry. These
two partners were doing business under this name and,
as we have said, it was not a commercial partnership.
Therefore, by the express provisions of articles 1698 and
1137 of the Civil Code the partners are not liable
individually for the entire amount due the plaintiff. The
liability is pro rata and in this case the appellant is
responsible to the plaintiff for only one-half of the debt.

For these reasons the judgment of the court below is

reversed and judgment entered in favor of the plaintiff
and against the defendant Whitcomb for the sum of
P376, with interest as fixed by the court below. No costs
will be allowed either party in this court.

A motion was filed on the 22nd of August, 1910, by

O'Brien and De Witt, asking this court to strike from the
record certain allegations in the printed brief of counsel
for the appellee. These allegations are as follows: "Does
the receipt bear the earmarks of newly discovered
evidence? Or of newly manufactured evidence?" These
questions were directed against O'Brien, one of the
counsel for appellant in this case, and were intended to
have the court believe that O'Brien had manufactured
the receipt referred to. There is nothing in this record
which shows that O'Brien did falsify or manufacture the
receipt. These questions are clearly impertinent. It is our
duty to keep our records clean and free from such
unwarranted statements. It is, therefore, ordered that the
same be stricken from the record. So ordered.

Arellano, C. J., Mapa, Carson and Moreland, JJ., concur.